Cap for H-1Bs Hit in One Day: Some Options Remain


Each year there are 65,000 new H-1B slots available for companies to hire foreign workers. The quota is available starting October 1, and cases can be filed six months in advance. This year, U.S. Citizenship & Immigration Services (“USCIS”) received more than 150,000 H-1B petitions

on April 2, 2007, depleting the cap in one day.

Once the quota is hit, no H-1Bs will be available for the rest of the fiscal year, which runs from October 1, 2007, to September 30, 2008. To weed out the excess, USCIS is subjecting the H-1B petitions received on April 2 as well as on April 3 this year to a random lottery selection. No

cases are guaranteed a slot, not even cases filed for expedited “premium processing” treatment. They, too, will be subject to the lottery. Even cases already assigned a number after April 2 have no guarantee that they will not be rejected if they don’t win the lottery. All H-1B cases received April 4 and thereafter will be rejected and returned.

Once again, this shows that demand for an educated workforce has outstripped the diminished supply in the United States. Unless Congress acts, employers who haven’t already filed H-1B petitions will be left to consider alternatives for foreign candidates, or have openings go unfilled through September 30, 2008.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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